EDELWEISS SERVICES AGREEMENT
This EDELWEISS Services Agreement (the “Agreement”) by and between Above the Treeline, Inc. (“Treeline”), a Delaware corporation, and you (“User” or “I”). By clicking the <Accept> button following the Agreement in the setup form, User agrees to be bound by this Agreement with Treeline as of the date hereof (the “Effective Date”). THE NATURAL PERSON CLICKING THE <ACCEPT> BUTTON BELOW REPRESENTS AND WARRANTS THAT S/HE IS AUTHORIZED TO SIGN CONTRACTS ON BEHALF OF, AND TO THEREBY BIND, USER, ALSO REFERRED TO AS “I” OR “YOU”.
WHEREAS, Treeline has developed a web-based, e-catalog product known as EDELWEISS, including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (the “Tool”), accessible via the website located at edelweiss.abovethetreeline.com, edelweiss.plus, or such other URL as Treeline may from time to time operate (the “Website”); and
WHEREAS, User wishes to access the Website and to use the Tool.
NOW, THEREFORE, for good consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
0. Restatement of Existing Agreement. The pre-existing EDELWEISS Services Agreement by which User accesses the Website and uses the Tool is, and shall be, amended and restated hereby in its entirety.
1. Grant of License and Access
1.1. Subject to the terms of this Agreement, Treeline grants to User a non-exclusive, non-transferable, non-assignable right to access the Website and use the Tool for User’s internal business purposes only.
1.2. The license granted pursuant to Section 1.1 does not include the right to sublicense.
1.3. User will ensure that no unauthorized persons have access to the Website or Tool, and that no persons authorized to have such access will take any action which would be in violation of this Agreement.
2. Fees and Termination.
2.1. The first term of this Agreement shall commence on the Effective Date and end upon the first annual anniversary of the last day of the calendar month that contains the Effective Date (the “Initial Term”). This Agreement shall thereafter renew for successive one year terms (“Renewal Term”).
2.2. User shall not pay a subscription fee to Treeline. User agrees and acknowledges that subscription fees with respect to the Website and Tool shall be paid by the Chicago Distribution Center (“CDC”). If CDC fails to pay the annual subscription fee prior to the commencement of the Renewal Term, then Treeline may suspend User’s Tool and/or Website access until such fees are paid. The subscription fee with respect to the Initial Term shall be pro-rated to include the full 12-month subscription term, plus the remaining days in the month that contains the Effective Date.
2.3. This Agreement may be terminated by written notice delivered to the other party. Articles 4 – 6 shall survive the termination of this Agreement.
3. Ownership & Use
3.1. User agrees that the Tool and the Website are the sole and exclusive property of Treeline, which both include Treeline’s valuable trade secrets. User further agrees and acknowledges that this Agreement grants User no right, title or interest to the Tool or the Website. User will not at any time take or cause any action that is inconsistent with or would tend to impair Treeline’s rights to the Tool or the Website.
3.2. User shall not modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Tool or any portion thereof. User shall not access the Website and Tool to plan, develop, encourage, direct, launch, or operate any business activity or venture that competes with Treeline’s exploitation of the Website or Tool.
3.3. User agrees and acknowledges that Tool users, including without limitation, User, benefit from Treeline’s ability to utilize and commercialize Tool- and Tool use-related data. User, therefore, shall and hereby does grant Treeline a perpetual, irrevocable, worldwide, non-exclusive, assignable, fully-paid up, royalty-free license, with the right to sublicense through multiple tiers, to sell, offer to sell, make, have made, import, use, reproduce, distribute, perform, display, and create derivative works from the User-originated, -contributed, -generated, and -related information or data arising from or relating to User’s use of the Tool.
3.4. Because the unauthorized use of the Tool is likely to diminish substantially the value of such Tool and irreparably harm Treeline and will not be susceptible of cure by the payment of monetary damages, if User breaches the provisions of Article 1, Treeline will be entitled to injunctive and/or other equitable relief without the necessity of proving irreparable harm or posting a bond, in addition to other remedies afforded by law.
3.5. User agrees and acknowledges that that User data necessary to facilitate and support or generated as a result of its use of the Website and Tool shall be submitted, curated, received, and controlled by and through CDC. User shall, and hereby does, authorize Treeline to communicate, transact, transmit, receive, and return such User data (and all derivatives thereof) with, to, and from CDC.
4. Limited Warranty, Remedy, and Disclaimer
4.1. Treeline warrants that for a period of thirty (30) days after the initial provision of Tool access, and that the Tool will perform substantially in accordance with its user documentation. User must provide a detailed written notice of any alleged warranty failure promptly within the warranty period. TREELINE’S SOLE OBLIGATION AND USER’S EXCLUSIVE REMEDY FOR ANY FAILURE OF THIS WARRANTY IS TREELINE’S BEST EFFORTS TO CORRECT THE NONCONFORMING SERVICES OR TOOL.
4.2. WITH THE EXCEPTION OF THE FOREGOING, THE WEBSITE, TOOL, ACCESS, USE, SERVICES, INFORMATION AND DATA PROVIDED THEREBY IS “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TREELINE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, TOOL, AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR OTHER ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE REGARDLESS OF WHETHER TREELINE KNOWS OR HAD REASON TO KNOW OF USER’S PARTICULAR NEEDS. TREELINE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR TOOL WILL MEET VIEWER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY VIEWER, OR THAT THE OPERATION OF THE TOOL WILL BE UNINTERRUPTED OR ERROR FREE. USER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IT HAS NOT RELIED ON ANY EXPRESS OR IMPLIED WRITTEN OR ORAL REPRESENTATION AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT. USER AGREES AND ACKNOWLEDGES THAT TREELINE DOES NOT CONTROL, AND BEARS NO RESPONSIBILITY FOR, THE ACTIONS OR OMISSIONS OF ANY USER. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE TOOL REMAINS WITH USER. IN NO EVENT WILL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO ACCESS THE TOOL, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Indemnity & Liability Limitation
5.1. Treeline will indemnify, defend, and hold User harmless from and against any claim, suit, action, proceeding, liability, damage, fee (including attorney’s fees), costs, and expenses (collectively a “Claim”) arising from or relating to an alleged or actual violation of a trade secret, patent or copyright that arises out of User’s use of the Tool in accordance with this Agreement, provided (i) User gives Treeline prompt written notice of any Claim; (ii) Treeline has the right to control the defense of the litigation; and (iii) User takes such actions as Treeline may reasonably request, at Treeline’s expense. If a judgment is obtained against User’s use of any part of the Tool, or if Treeline believes that there is a likelihood of a claim of infringement, Treeline will, at Treeline’s option and expense: (x) modify or substitute the affected Tool (but provide User with substantially the same functionality); (y) obtain the right to User’s continued use; or (z) terminate the license and take back the affected Tool.
5.2. User will indemnify, defend, and hold Treeline harmless from and against any Claim arising from or relating to User’s use of the Tool, and User will pay all costs, settlements, or judgments finally awarded, provided (i) Treeline gives User prompt written notice of any claim; (ii) User has the right to control the defense of the litigation; and (iii) Treeline takes such actions as User may reasonably request, at User’s expense.
5.3. EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN THIS ARTICLE 5, TREELINE SHALL HAVE NO LIABILITY FOR THIRD PARTY CLAIMS. IN NO EVENT SHALL TREELINE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES, OR LOST OR IMPUTED PROFITS OR LOST DATA ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE TOOL OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
5.4. TREELINE’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE TOOL OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, SHALL BE LIMITED TO DIRECT DAMAGES IN THE AMOUNT EQUIVALENT TO THE GREATEST AGGREGATE AMOUNT OF NET FEES ACTUALLY RECEIVED BY TREELINE FROM USER HEREUNDER DURING ANY GIVEN TWELVE (12) MONTH PERIOD. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION APPLY TO ALL CLAIMS OR CAUSES OF ACTION ON WHATEVER BASIS AND UNDER WHATEVER THEORY BROUGHT AND IRRESPECTIVE OF WHETHER TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
5.5. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF USER HAS A CLAIM OR A CAUSE OF ACTION ARISING UNDER THIS AGREEMENT AND USER FAILS TO SERVE TREELINE IN CONNECTION WITH THAT CLAIM OR CAUSE OF ACTION PRIOR TO THE TWELVE (12) MONTH ANNIVERSARY OF THE OCCURRENCE OF THE FACTS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, THEN USER HEREBY WAIVES, AND COVENANTS NOT TO SUE UPON, SUCH CLAIM OR CAUSE OF ACTION.
5.6. User agrees and acknowledges that Treeline makes no representations or warranties whatsoever with respect to any intrusions, disruption, loss of communication, loss or corruption of data, or other error or event caused or permitted by or introduced through User’s use of the Internet (“Data Breach”). User shall, and hereby does, forever release, waive, and covenant not to sue Treeline with respect to any Claim arising from or relating to an alleged or actual Data Breach. User shall be solely responsible for implementing adequate firewall, password and other security measures to protect User’s networks (and its users’) from unwanted intrusions over the Internet.
6.1. User hereby grants to Treeline a license to use its name, trademarks and other brand identifiers on the Website and in Treeline marketing materials for the sole purpose of identifying User as a recipient of the services provided on the Website and a user of the Tool.
6.2. Treeline will not be responsible for any delay or failure in performance caused by acts of God or any government or any other cause beyond Treeline’s reasonable control.
6.3. Treeline may assign this Agreement. User may not assign this Agreement without Treeline’s prior written consent. An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement. Any action in violation of this Section 6.3 shall be null, void, and without effect.
6.4. This Agreement will be governed, construed and enforced in accordance with the laws of the State of Michigan, without regard to its principles of the conflict of laws. Any and all litigation arising from or relating to this Agreement shall be filed and prosecuted before any court of competent subject matter jurisdiction in the Eastern District of Michigan. The parties hereto consent to the exclusive jurisdiction of such courts over them, stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to allege or assert the inconvenience, inefficiency or unfairness of proceeding in such courts. The Parties agree that the Uniform Computer Information Transactions Act (“UCITA”), as adopted in any State or Commonwealth, shall not apply to this Agreement or any performance hereunder and the parties expressly opt-out of the applicability of UCITA to this Agreement.
6.5. This Agreement, including all Schedules and Exhibits hereto, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions or agreements (whether written or oral) between the parties regarding such subject matter. In case of a conflict between a provision of the body of this Agreement and a specific provision of a Schedule, the provision of the Schedule shall prevail.
6.6. Treeline may modify or amend this Agreement at any time by notice delivered to User. User’s subsequent access of the Website and/or use of the Tool conclusively demonstrates and constitutes User’s acceptance of the modification or amendment. User may not modify or amend this Agreement except by a writing accepted by Treeline. If User issues a purchase order or other document covering the subject matter of this Agreement, it is agreed that such purchase order or document is for User’s internal purposes only and is not legally effective except to the extent specified in this Agreement.
6.7. It is the express intention of the parties that Treeline and Treeline personnel are independent contractors and not employees, agents, joint venturers or partners of User. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between User and Treeline or any Treeline personnel. Both parties acknowledge that Treeline and Treeline personnel are not User employees for local, state or federal tax purposes.
6.8. All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by electronic communication, personal delivery, overnight delivery service, or certified mail, return receipt requested, to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party.
6.9. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and such provision shall be automatically modified so as to be valid, legal, and enforceable and to as nearly as possible reflect the intent of the parties.
6.10. The waiver by either party of a breach of a default of any provision of this Agreement by the other party will not be construed as a waiver of any prior or succeeding breach of the same or any other provision, nor will any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.
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Service Level Commitments
Treeline, or its designated representatives, shall host the Website and Tool. Treeline shall be responsible for the acts of its designated representatives and any failure by its designated representatives shall be deemed a failure by Treeline. From time to time, the Website and Tool may be inaccessible or inoperable for various reasons, including equipment malfunctions, upgrades or modifications, or causes beyond Treeline’s control that are not reasonably foreseeable by Treeline, including interruption or failure of telecommunication or digital transmission links, necessary maintenance, hostile network attacks or network congestion or other failures (“Downtime”). Treeline shall use reasonable efforts to avoid and reduce Downtime.
User shall be required to access or use an Internet connection to use the Website and Tool. User understands and agrees that the Internet is an unregulated, public network over which Treeline exerts no control.
Downtime shall exclude regularly scheduled maintenance to be conducted after 8pm eastern time and before 7am eastern time or anytime during weekends. Treeline will use commercially reasonable efforts to provide the following service levels:
Edelweiss Website Availability
|Notification of Planned Maintenance and Downtime to User’s Admin Team
|Five (5) business days|
|Edelweiss Support Hours||M-F, 8:30 EST to 8:00 PM EST by phone or email. Outside of above hours by email.|
|Sales Rep and End User Accounts||Unlimited|
|Back-up||Daily near line backups of User data and assets provided by User to Treeline, including but not limited to files of catalog data and other marketing materials|
|Disaster Recovery||System redundancy and critical business data backup (secondary location) and restore procedures in place; with a recovery objective (to normal operations) of 1 business day|
|Training||Web-based training will be provided as needed; on location training will be provided if requested by User on a best efforts basis with travel and expenses paid for by User|
Bug fixes will be addressed on a best efforts basis and prorated credit will be applied to the next User payment in the event of bugs resulting in downtime of over 24 hours